KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 314/2021

JUDGMENT DATED: 15.11.2024

(Against the Order in C.C. 753/2015 of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

Musthafa Kamal, S/o Bawa, Olavakkot House, Lokamaleswaram, Kodungallur P.O., Thrissur-680 664.

(By Adv. S. Reghukumar, Adv. Ashik K. Mohamed Ali and Adv. Vishnu V. Nair)

Vs.

RESPONDENTS:

1. M/s Skoda Auto India Private Ltd., A1/1, MIDC Five Star Industrial Area, Shendra, Aurangabad-431-201, Maharashtra, represented by its Managing Director, Sudhir Rao.

(By Adv. P. Fazil, Adv.R. Suja Madhav, Adv.Jithin Paul Varghese, Adv.Ann Mary Francis and Adv.Sruthy Ramanujan)

2. M/s Vision Motors Pvt. Ltd., 3/386-B, Kunnathumkara, Ollukkara P.O., Paravattani, Thrissur-680 655 represented by its Managing Director, Naveen Philip.

3. M/s Marikar Engineers Pvt. Ltd., IV/389, Eloor Road, North Kalamassery, Cochin-683 104 represented by its Director, Nazira Marikar.

(By Adv. Jijo Thomas, Adv. Ajith Joy, Adv. M.D. Beena and Adv.Aneesh James for R3)

4. M/s Bajaj Allianz Insurance Company Limited, 3^rd Floor, Finance Tower, Kaloor, Kochi-682 017, Ernakulam, represented by its Motor Claims Manager, Vijesh Vijayan.

(By Adv. P.S. Ramu and Adv. Ashraf A.)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

The appellant is the complainant and the respondents are the opposite parties in C.C. No. 753/2015 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (for short “the District Commission”).

2.  The appellant purchased a Skoda Rapid Elegance car from the 2^nd respondent on 22-12-2012.  The said vehicle was having insurance coverage with the 4^th respondent.  It is contended that the vehicle was having constant troubles due to the manufacturing defects.  Finally, on 02.07.2015, while the appellant was driving the vehicle, the vehicle stopped working due to an oil leakage and consequently, the vehicle had to be towed to the service station of the 3^rd respondent.  The 3^rd respondent, after inspecting the vehicle, opined that the vehicle had some crack at the bottom portion of the gear box.  Therefore, the 3^rd respondent requested the appellant to raise a claim with the 4^th respondent as the crack was due to an under-body hit on the road.  Accordingly, a claim was raised by the appellant.   The 4^th respondent, thereafter, appointed an IRDA approved surveyor for inspecting the vehicle.  The surveyor, after inspecting the vehicle, filed a report, wherein the loss was assessed at Rs. 43,209/- (Rupees Forty Three Thousand Two Hundred and Nine only).  The 3^rd respondent had given an estimate of Rs. 1,45,995/- (Rupees One Lakh Forty Five Thousand Nine Hundred and Ninety Five only) for the repair work.   However, the 4^th respondent had taken a contention that since the appellant had driven the vehicle when there was no oil in the engine due to the crack on the gear box, which caused damage to the gear box, the 4^th respondent could pay only the amount assessed by the IRDA approved surveyor.  The 4^th respondent contended that driving the vehicle, when there was no oil in the engine, had caused damage to the gear box of the vehicle, for which there was no insurance coverage and accordingly, the 4^th respondent assessed the damage, which could be claimed, at Rs. 43,209/- (Rupees Forty Three Thousand Two Hundred and Nine only.  The 3^rd respondent had given an estimate for the repair at Rs. 1,45,995/- (Rupees One Lakh Forty Five Thousand Nine Hundred and Ninety Five only). 

3.  The 3^rd respondent filed version admitting the damage sustained to the vehicle.  However, the 3^rd respondent denied that the vehicle was having any manufacturing defect. 

4.  The 4^th respondent filed version admitting the policy coverage of the vehicle.  However, the 4^th respondent was prepared to pay only an amount of Rs. 43,209/- (Rupees Forty Three Thousand Two Hundred and Nine only) stating that the damage caused beyond that amount was due to the driving of the vehicle by the appellant when there was no oil in the engine due to the crack on the gear box.

5.  PW1 was examined and Exhibits A1 to A21 were marked for the appellant.  Exhibits B1 to B3 were marked for the 3^rd opposite party and Exhibits B4 to B7 were marked for the 4^th opposite party.  After evaluating the evidence, the District Commission directed the 4^th respondent to pay an amount of Rs. 1,45,995/- (Rupees One Lakh Forty Five Thousand Nine Hundred and Ninety Five only) to the appellant towards the cost for repairing the vehicle.  The District Commission, however, dismissed the complaint as against respondents 1 to 3.  Aggrieved by the said order, this appeal has been filed by the complainant.

6.  Heard both sides and perused the records. 

7.  It is not disputed that the vehicle of the complainant was entrusted with the 3^rd respondent on 02.07.2015 as the vehicle had oil leakage.  It is also not disputed that on inspection of the vehicle, the 3^rd respondent noticed that there was some crack on the bottom of the gear box.  So, a claim was raised by the appellant to the 4^th respondent on the request of the 3^rd respondent, as the vehicle had full insurance coverage.  On receipt of the claim, the 4^th respondent deputed an IRDA approved surveyor for inspecting the vehicle. Accordingly, the surveyor inspected the vehicle and filed Exhibit B6 survey report. As per Exhibit B6 survey report, the total damage sustained to the vehicle of the appellant due to the hit was assessed at Rs. 43,209/- (Rupees Forty Three Thousand Two Hundred and Nine only).  It was reported in Exhibit B6 that the under- body hit on the road when the vehicle fell into a pothole, had caused crack to the gear box case.  It was also stated in Exhibit B6 that the vehicle was driven thereafter without doing the repair work, which resulted in the leaking of the oil from the gear box through the crack and due to the lack of lubrication, internal parts of the gear box were worn out.  Thus, the damage caused to the internal parts was consequential in nature.  The said damage would not come under the purview of Exhibit B4 policy.

8.  Even though it was contended by the appellant that the vehicle had manufacturing defect, no material is available to show that the vehicle had any manufacturing defect.  The contention of the 3^rd and the 4^th respondents would show that the vehicle had an under-body hit on the road when the vehicle fell into a pothole and as a consequence, damage was caused to the vehicle. 

9.  The order passed by the District Commission was not challenged by any of the respondents.  Therefore, the said order is binding on them.  From the materials, we are satisfied that the appellant did not produce any material to show that the vehicle in question had any manufacturing defect.  No expert report is also available in this regard.  That apart, the 3^rd respondent had admitted that the vehicle had sustained a hit and due to that hit, damage was caused to the vehicle. Therefore, the 4^th respondent was rightly directed by the District Commission to pay the entire amount for repairing the vehicle as per Exhibit B1 estimate given by the 3^rd respondent, to the complainant.  In the said circumstances, we find no reason to interfere with the order of the District Commission in this regard. 

10.  As per order dated 19.03.2024, an order was passed by this Commission directing the 4^th respondent to pay the amount with interest to the 3^rd respondent.  There was a further direction to the 3^rd respondent to deliver the possession of the disputed vehicle to the appellant on receipt of the said amount.  The 3^rd respondent received the amount with interest from the 4^th respondent, submitted by the learned counsel for the 3^rd and the 4^th respondents.  Since the 3^rd respondent had received the amount with interest, it was the duty of the 3^rd respondent to hand over the vehicle in a roadworthy condition to the appellant.  However, the counsel for the appellant has submitted that the vehicle was not handed over to the complainant in a roadworthy condition.  On the other hand, the vehicle was towed to the residence of the appellant.  Since the respondents have not filed any appeal, the direction issued by the District Commission to the 4^th respondent has become final.  As we have already mentioned above, since there is no material to prove any manufacturing defect on the vehicle, the contention of the appellant that the vehicle had manufacturing defect cannot be sustained.  That apart, the amount mentioned in the estimate given by the 3^rd respondent was for the repairing of the entire damage sustained to the vehicle.  Therefore, the appellant needs only a direction to the 3^rd respondent to hand over the vehicle to the appellant in a roadworthy condition.  Since the 3^rd respondent had accepted the money, the 3^rd respondent cannot be heard to say that they ceased to be the dealer of the 1^st respondent.  The money for the repair work was directed to be given by the 4^th respondent as the vehicle was having insurance coverage at the relevant time. Since the repair work is not to be done under any warranty, it is immaterial if at all the 3^rd respondent ceased to be the dealer of the 1^st respondent. Therefore, the contention in this regard cannot be sustained.

11.  It has been submitted by the learned counsel for the appellant that the 3^rd respondent had produced forged photographs before the District Commission.  The appellant requested the District Commission to take action against the 3^rd respondent under Sec. 340 CrPC.  It appears that the District Commission considered the said aspect and dismissed the request in this regard under point No. (i) of the order impugned on the ground that there was no intentional or deliberate attempt on the part of the 3^rd respondent in producing fabricated document before the Commission.  Having gone through the order impugned, we do not find any reason to interfere with the said order.  Needless to say that if the vehicle was not actually repaired as per the bills produced by the 3^rd respondent and the bills produced are concocted bills, then the appellant shall be at liberty to proceed against the 3^rd respondent in accordance with law.  The vehicle shall be handed over to the appellant after getting it inspected and certified by an Assistant Motor Vehicle Inspector.  In view of the above, I.A. No. 1517/2024 stands closed. 

In the result, this appeal stands allowed in part;

 and

(a) the 3^rd respondent is directed to collect the vehicle from the residence  of the appellant, do the necessary repair work to make it road worthy and hand over the vehicle to the appellant at his residence within 30 days from the date of receipt of this judgment.

(b)    if the 3^rd respondent fails to hand over the vehicle to the appellant within 30 days from the date of receipt of this judgment in a roadworthy condition as mentioned under (a) above, the 3^rd respondent shall pay a compensation of Rs. 50,000/- (Rupees Fifty Thousand only) to the appellant which will carry an interest of 9% per annum from the date of default till the date of handing over of the vehicle to the appellant in a roadworthy condition. 

(c) the compensation under (b) above shall be in addition to the right of the appellant to approach the execution court for execution, in the event of non-compliance of the direction under (a) or (b) above.

(d) in the circumstances of the case, there is no order as to costs in this appeal.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

jb                                                                     RADHAKRISHNAN K.R.  : MEMBER